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NICHOLSON v. PITTENGER

August 9, 1973

Karen and Bernice NICHOLSON, minors by and with their parent and guardian, Wallace Nicholson, et al., Plaintiffs,
v.
John PITTENGER, Individually and in his official capacity as Secretary of the Pennsylvania Department of Education, et al., Defendants


Joseph S. Lord, III, Chief Judge.


The opinion of the court was delivered by: LORD, III

JOSEPH S. LORD, III, Chief Judge.

 This is an action alleging various violations of Title I of the Elementary and Secondary Education Act, 20 U.S.C. § 241a et seq. (herein "Title I"). We have jurisdiction under 28 U.S.C. § 1331. Plaintiffs have moved for a preliminary injunction. *fn1"

 We note at the outset that defendants have not contested any of plaintiffs' factual allegations, nor have defendants presented any reasons for denying plaintiffs the declaratory and injunctive relief which they seek.

 Defendants never filed an answer or responsive pleading either to plaintiffs' amended complaint or to plaintiffs' motion for a preliminary injunction. At the hearing on the motion for an injunction, plaintiffs offered into evidence over a thousand pages of documents; defendants rested without calling a single witness and without offering a single exhibit. Although plaintiffs filed a 26-page memorandum of law in support of their motion for a preliminary injunction and 41 pages of requested findings of fact and conclusions of law, defendants have not seen fit to file any briefs, memoranda, or proposed findings of fact and conclusions of law.

 The sole response we have received from defendants, other than the physical appearance of a Deputy Attorney General at the hearing, is a two-paragraph letter dated July 23, 1973, in which, without citing a single case, statute, or regulation as authority, the Deputy Attorney General concludes, "We feel that Plaintiffs have failed to prove their case." *fn2"

 Title I provides financial assistance to local educational agencies for the education of children of low income families. *fn3" Title I funds are dispersed to State educational agencies. *fn4" A local educational agency may receive a grant under Title I only upon an application to and approval by the appropriate State educational agency. *fn5"

 Plaintiffs, suing individually and on behalf of their minor children, are poor parents of educationally deprived children enrolled in public schools operated by the School District of Philadelphia (herein "Philadelphia"). *fn6" Defendants, Pennsylvania Department of Education, John Pittinger, Secretary, et al., are statutorily responsible for reviewing and thereafter approving or disapproving Title I applications submitted by local educational agencies throughout Pennsylvania.

 The gist of plaintiffs' complaint is that defendants have approved Title I applications for Philadelphia without first making certain determinations required by statute, and that these applications violated various statutory restrictions governing the use of Title I funds. These determinations and violations fall within four categories: (1) comparability; (2) supplanting; (3) concentration; and (4) evaluation. Plaintiffs seek a declaration of these violations by defendants and an injunction prohibiting defendants from approving future Title I applications from Philadelphia which contain these violations.

 I. COMPARABILITY DETERMINATIONS AND VIOLATIONS

 Plaintiffs allege that defendants violate 20 U.S.C. § 241e(a)(3), (c) and 45 C.F.R. § 116.26 by approving Title I applications for Philadelphia which do not provide comparable educational services in schools receiving Title I funds and in schools not receiving Title I funds.

 In Hobson v. Hansen, 327 F. Supp. 844 (D.C., 1971), Circuit Judge J. Skelly Wright stated,

 
"Federal law requires that Title I funds be spent only to meet the special educational needs of disadvantaged children. To obtain Title I funds from the federal government, local school administrations must first demonstrate that the designated receiving schools are already given at least equal treatment with other schools in the system as measured by objective inputs of regular budgetary funds." 327 F. Supp. at 851.

 Before allocating Title I funds to a local educational agency, the appropriate State educational agency must determine that the local agency has allocated its funds from state and local sources in such a manner that each school receiving Title I funds is allocated approximately the same amount of state and local funds as the average school in that district not receiving Title I funds. 20 U.S.C. § 241e(a) provides,

 
"A local educational agency may receive a grant under this subchapter for any fiscal year only upon application therefor approved by the appropriate State educational agency, upon its determination (consistent with such basic criteria as the Commissioner may establish) -- * * * (3) that * * * State and local funds will be used in the district of such agency to provide services in project areas which, taken as a whole, are at least comparable to services being provided in areas in such district which are not receiving funds under this subchapter * * *."

 45 C.F.R. § 116.26(a) provides:

 
"A State educational agency shall not approve an application of a local educational agency * * * unless that agency has filed, in accordance with instructions issued by the State educational agency, information as set forth in paragraphs (b) and (c) of this section upon which the State educational agency will determine whether the services, taken as a whole, to be provided with State and local funds in each of the school attendance areas to be served by a project under Title I of the Act are at least comparable to the services being ...

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